146 Ky. 441 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
Under an ordinance passed by the common council- of the city of Henderson, the appellant company improved the sidewalk abutting on property of appellee. After-wards it brought this equitable action against appellee to enforce its lien upon his property to satisfy the cost of the improvement. A recovery was resisted upon the ground that the ordinance authorizing the improvement was void, first: Because the special meeting of the council at which it had its second reading and final passage was not legally called; and second, because the ordinance on
Taking up first the second ground urged to the validity of the ordinance, it can he easily disposed of.
Section 3274 of the Kentucky Statutes reads in part:
“The common council shall cause to be kept a complete and correct journal of its proceedings.” * * *
The ordinance in question was introduced and had its first reading at a regular session of the council held on February 15, 1910, and so much of the journal of the proceedings of that meeting as relate to this ordinance) reads:
“An ordinance for the improvement and laying of sidewalks on the north and south side of Second street between Elm and Green streets was read and passed on its first reading at the aforesaid meeting on February 15,1910.”
It is said in argument that it was essential to the validity of the ordinance that the clerk should have set it out in full upon his journal of the proceedings, and that the record of it made by him was not a sufficient compliance with the statute. But we do not think the objection to the validity of the ordinance based upon the ground that the clerk failed to enter it in full upon his record is well taken. Whether or not it is essential to the validity of an otherwise sufficient ordinance that any record of it should be entered upon the journal of the council is a question that it is not necessary to decide as in our opinion the entry upon the journal of the proceedings in respect to this ordinance was sufficient even if it was essential to its validity that a record should be made. Commonwealth v. Williams, 120 Ky., 314; McNulty v. Toof, 116 Ky., 202; Reed v. City of Louisville, 22 Ky. L. R., 1636; Dillon on Municipal Corporations, Sec. 293, et seq.; 28 Cyc. 358; City of Bluefield v. Johnson, 68 W. Va., 303, 69 S. E., 848. The journal contains such a record of the proceedings as that any person interested in the matter could readily understand from the entry what the council did in respect to the improvement of these streets, and, if he desired further information as to the details of the ordinance-, he could procure a copy from the clerk. The journal of the clerk in respect to ordinances like the one under consideration is intended to be an index that will show fairly and intelligently what the council did, rather than a full and complete record of its proceedings.
‘ ‘ The common council shall hold two regular meetings each month upon such days as' may be fixed by ordinance. * * *”
Section 3279, that “No ordinance shall take effect and be binding until the same shall have been twice publicly read and passed by the common council at two sessions held on different days.”
Section 3301, provides that: “He (the Mayor) may when he deems it expedient, and shall upon the written request of a majority of the members of the council, call a special meeting of the council, but in the call he shall designate the purpose of same, and no other business shall be considered.”
The ordinance in quéstion had its first public reading and was duly passed at a regular meeting of the council held on February 15, 1910, but its second reading and passage was had at a special meeting of the council on March 18, 1910. This special meeting was called by the Mayor in the following written notice given to each of the councilmen:
‘ ‘ There will be a called meeting of the common council Friday, March 18, to consider ordinances. The, meeting will be called at 7:30 p. m. No other business will be considered.”
The objection urged to this notice is that it was fatally defective in failing to designate as required by the statute “the purpose” of the meeting. In opposition to this, it is insisted by counsel for the appellant that the statute is merely directory and that no particular form of notice is required, the only essential thing being that the members of the council shall be notified that a special meeting is called and advised when and where it will meet. But we attach more importance to the provision of the statute than counsel do, and think that nothing short of a substantial compliance will satisfy its requirements, and that the council has no authority to transact any business at a special meeting unless it
“Where the statute requires the notice ‘to specify the business to be done,’ an omission to comply with this requirement, makes the meeting void; and it is held that a notice stating generally ‘to do any proper business’ is insufficient, and the acts and votes of a meeting held under it are of no binding or legal force: Indeed, the rule is general that where the statute requires the business to be stated in the warrant or notice, this is' absolutely essential, and the meeting must be confined to those matters.”
And there is good reason for requiring that notice of special meetings should be given, and that the notice should specify the purpose of the meeting with such fullness and accuracy as to give reasonable information of the business it is proposed to transact at the special meeting. The council is the legislative body of the city, and it is of prime importance that the people who are concerned in legislation that directly affects their interests and welfare should have opportunity to know when and" where meetings of the council will be held and what business will probably be transacted, so that they may have the opportunity, if they so desire, of advising and counseling with the members and attending the meeting to observe the manner in which their representatives perform the duties they were elected to discharge. Appreciating the value of having fixed and well known times for the assembling of the council, the statute provides that the common council shall hold two regular sessions each month upon such days as may be fixed by ordinance, and all the business it has power to transact.must be attended to at these regular meetings, unless a special session is ordered. As a further safeguard against hasty and inconsiderate action on the part of
"The statute does not give the form of the call or notice, and it will be deemed sufficieiit if it merely designate in general terms the purpose of the meeting. Details are unnecessary. Only a designation of the subject or subjects of legislation or business to be considered at the called meeting of the council is required. Manifestly the call for the meeting of the council of the city of Henderson on the occasion uiider consideration meets this requii’ement. ’ ’
To the same effect is the opinion of the Supreme Court of Connecticut as expressed in the case of Haydon v. Noyse, 5 Conn., 391, cited with approval in Bloomfield v. Charter Oak Natl. Bank, 121 U. S., 121, 30 L. ed., 923. The law of Connecticut provided' that “a town cannot make a contract or authorize any officer or agent to make one in its behalf except by vote in a town meeting duly notified or warned, and the notice or warning must specify the matter to be acted on.”. In considering this statute, the court said:
"By the act concerning-towns, the mode of warning town meetings is specially prescribed. There is to be a notification in writing, ‘specifying the objects for*449 which they are to he held/ signed by the selectmen, and set upon the public sign post or posts in the town, at least five days before the meeting. A meeting not warned agreeably to the mode designated is no legal congregation of the town; and its acts in that capacity are void. If the object be to regulate the clam and oyster fisheries, that object must be specified in the warning, in an intelligible manner. A notification to assemble a town meeting for a lawful purpose, duly specified, and to do other town business, is, except as to the specification, as entirely exceptionable as if the town were warned to meet and do any business they should think proper. It is the purpose of the law, not to prescribe a frivolous form, but to give substantial information. If the object of the meeting is specified, it will present a motive to the inhabitants to be present, and they will leave business, even if it be. pressing, provided they feel an interest in the subject to be deter-mined. On the other hand, if the subject is unimportant, and any of the inhabitants should feel no concern in the result, they may with safety pursue their ordinary business; and this certainly is a matter of convenience.”
After a full consideration we are of the opinion that as the notice was not sufficient to authorize the consideration of the ordinance, its enactment was void, and the judgment of the Lower Court is affirmed.